Papua New Guinea Printing Co Pty Ltd v Andrew Thompson

• Jurisdiction: Papua New Guinea
• Judge: Brown J
• Judgment Date: 10 July 1991
• Citation: [1993] PNGLR 81
• Court: National Court
• Year: 1993
• Judgement Number: N1149

National Court: Brown J

Judgment Delivered: 10 July 1991

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PAPUA NEW GUINEA PRINTING CO PTY LTD

V

ANDREW THOMPSON

Waigani

Brown J

10 July 1991

PRACTICE — Injunction granted against defendant in these proceedings between existing parties — Intervener (the present employer of the defendant) seeks to be joined to cross claim for damages from injunction — Whether "sufficient interest" in the cause or matter — Principles discussed — National Court Rules O 5 rr 2, 5, and 8.

Facts

The plaintiff sued the defendant for damages for breach of contract of employment. He successfully obtained an injunction against the defendant, restraining him for six months from being involved in the sales, servicing or promotion of Nashua photocopying or facsimile machines whilst in the employ of Daltek Pty Ltd. The defendant was a former employee of the plaintiff but was at the time of action employed by Daltek Pty Ltd.

Daltek sought to be joined as a second defendant to enable it to cross-claim against the plaintiff for alleged damages suffered as a result of the injunctive order affecting the defendant and further damages in costs attaching the plaintiff's undertaking as to damages given on its application for injunctive orders against the defendant.

Held

1. The intervener is able to sue on either the undertaking or any other cause of action as of right, as it may be advised. It is not precluded from instituting separate proceedings and pleading any such right which it may assert notwithstanding the success or otherwise of the plaintiff's case. The only reason which makes it necessary to add a party to an action is so that the party may be bound by the result of the trial. The question to be settled must be a question which cannot be effectually and completely settled unless that party is so joined; Miguel Sanchez & Compania SL v Owners of The Result [1958] P 174 adopted.

2. The intervener has insufficient interest in the cause or matter as it presently stands between the existing parties to justify an order that it be joined as a second defendant.

Cases Cited

Miguel Sanchez & Compania SL v Owners of The Result [1958] P 174; [1958] 1 All ER 839.

Montgomery v Foy Morgan & Co [1895] 2 QB 321.

Counsel

W Frizzel, for the intervener.

P Steele, for the plaintiff/respondent.

10 July 1991

BROWN J: By notice of motion, the intervener, Daltek Pty Ltd, sought to be joined as a second defendant in proceedings instituted by the plaintiff seeking damages from the defendant for alleged breach of a term of a contract of employment. In support of the notice of motion, an affidavit by a director of Daltek deposed to the present employment by that company of the defendant, Andrew Thompson. Daltek says that the company has suffered loss as a consequence of an injunction originally given in the plaintiff's favour on 28 February 1990 whereby the defendant Thompson was restrained for a period of six months from the 30 November 1989 from being involved directly or indirectly in the sales, servicing, or promotion of Nashua photocopying or fascimile machines whilst in the employ of Daltek. The plaintiff...